Retrospective approval of a loft extension at a freehold formerly owned by council.

[PhilipBlake]

I am about to purchase a freehold property in London that used to be owned by the local council 40 years ago. The current owner of this freehold has done recently a loft conversion. He obtained planning permission but overlooked the fact that the property came with a covenant requiring an additional permission from the council even though the property is a freehold. The current owner (the seller) is unwilling to seek retrospective approval (waiver of the breach). My questions:
1). If I purchase the property and seek a retrospective approval for the work done by the seller, what are the odds that the council turn it down? Especially given the fact that the same council delivered a planning permission for the loft conversion.
2). How enforceable are these old covenants since the property is now a freehold? Can I ignore them, get a planning permission for an extension in the garden for example, and just seek retrospective approval for the work done?

It strikes me as odd that a council can sell a property 40 years ago, and still dictate what can be done or not on a freehold property. Thanks for your help.

The covenant wording:
"As an owner of the Property you will be required to observe the following covenants as contained in the Transfer dated XX/XX/1979:-
- Any part of the property not built upon shall be used as a private garden only.
- Not to erect any further building on the property, nor add to or enlarge the existing buildings without the prior written consent of the Council as Estate Owners."

[Lawcruncher]

A loft conversion would not seem to involve erecting any further building on the property, or adding to or enlarging the existing buildings.

[PhilipBlake]

A loft conversion would not seem to involve erecting any further building on the property, or adding to or enlarging the existing buildings.

Thanks. That was a loft conversion with dormer windows. There was an alteration of the roof. On the second point though (a possible garden extension), how relevant is that covenant in practice?

[Section20z]

If it has planning permission then it already has "prior written consent of the council" so there is no breach. Likewise get planning consent for extension even if you consider it PDR.

[Lawcruncher]

That was a loft conversion with dormer windows. There was an alteration of the roof. On the second point though (a possible garden extension), how relevant is that covenant in practice?

I suppose a dormer window could be classed as an enlargement or addition. I do not think that you want to be buying and then asking for retrospective consent (or more correctly a waiver of a breach of covenant) as you do not need consent for something already done. You need to decide now if you are going to insist on an application being made to the council and not bu without consent or "take a view" and buy without the consent and just let sleeping dogs lie.

Many factors are involved in deciding whether a covenant has become obsolete. The fact that the covenant is 40 years old is not on its own sufficient to assume it obsolete.

See also my next post.

[Lawcruncher]

If it has planning permission then it already has "prior written consent of the council" so there is no breach. Likewise get planning consent for extension even if you consider it PDR.

The council has two capacities here, one as planning authority and one as landowner. Giving consent as the former does no imply giving consent as the latter. Any possible doubt that that is the case is removed by the words in red in "without the prior written consent of the Council as Estate Owners".

[PhilipBlake]

I suppose a dormer window could be classed as an enlargement or addition. I do not think that you want to be buying and then asking for retrospective consent (or more correctly a waiver of a breach of covenant) as you do not need consent for something already done. You need to decide now if you are going to insist on an application being made to the council and not bu without consent or "take a view" and buy without the consent and just let sleeping dogs lie.

Thanks. Very useful. The fact is that the current owner has already stated that he will not seek a waiver of breach of covenant. So, that's pretty much take it or leave it. I'm inclined to the former, and to take my chance. The million dollar question: in that scenario, what's the likelihood of the council granting the waiver vs refusing it and taking action?

[Lawcruncher]

The million dollar question: in that scenario, what's the likelihood of the council granting the waiver vs refusing it and taking action?

As a rule of thumb where there are no special considerations, where planning permission is granted a landowner faces an uphill task in persuading a court that he can reasonably refuse consent. Of course, carrying out work without consent is still a breach even if consent would have given so there is the potential to sue. No sensible landowner is going to sue here because (a) any damages are likely to be minimal and (b) I cannot imagine a court granting an injunction to reverse the works. You can also to bear in mind that councils have limited resources.

What is a real possibility is that if you apply for a waiver the council will demand some cash as a consideration for giving it.